Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law

Labor & Employment Law

: New York Public Personnel Law

Employee required to answer employer?s work-related inquiries

Employee required to answer employer?s work-related inquiries
Spielbauer v County of Santa Clara [Calif.], Supreme Court of California, decided February 9, 2009. Docket No. S-150402

A deputy public defender, Thomas Spielbauer, being investigated by his employer, Santa Clara County, for alleged deceptive court conduct. He was dismissed after he declined to answer questions concerning his conduct.

Supreme Court upheld Spielbauer?s dismissal, noting that:

1) A public employee may be compelled, by threat of job discipline, to answer questions about the employee's job performance, so long as the employee is not required, on pain of dismissal, to waive the constitutional protection against criminal use of those answers;

2) In this case, Spielbauer was not ordered to choose between his constitutional rights and his job; and

3) Spielbauer employer was not required to seek, obtain, and confer a formal guarantee of immunity before requiring Spielbauer to answer questions related to the investigation.

Compelling an individual to answer questions related to his or her performance of official duties in the course of an administrative proceeding under a treat of dismissal often results in a conflict between the individual claiming a constitutional right against self-incrimination and the threat of dismissal for refusing to answer job related inquiries.

In the event the employee elects to respond under such duress, his or her statements automatically attain ?use immunity? with respect to such statements being used in a subsequent criminal prosecution.*

The question of compelling a public officer or employee to testify or risk termination was considered by the Court of Appeals in Matt v LaRocca, 71 NY2d 154, cert denied 486 US 1007. In the Matt case the Court of Appeals held that when a public employee is threatened with termination if he or she refuses to testify under oath, the testimony given by the individual is "cloaked with use immunity."

Matt had refused to answer question posed to him in the course of a Public Officers Law Section 61 hearing despite being advised that such refusal was insubordination.

Public Officers Law § 61, in pertinent part, provides as follows: ?Investigations by state officers. Every state officer, in any proceeding held before him, or in any investigation held by him for the purpose of making inquiry as to the official conduct of any subordinate officer or employee, shall have the power to issue subpoenas for and require the attendance of witnesses and the production of all books and papers relating to any matter under inquiry.?

In Matt the Court of Appeals held that "Public employees, charged with a public trust, do not have an absolute right to refuse to account for their official actions and at the same time retain their employment." However, said the court, "when a public employee is compelled to answer questions or face removal upon refusing to do so, the responses are cloaked with immunity automatically, and neither the compelled statements nor their fruits may thereafter be used against the employee in a subsequent criminal prosecution."

Sometimes an employee wil refuse to answer questions after being given ?use immunity.? Martinez v Safir, App. Div., 1st Dept., 251 A.D.2d 62, involved such a situation.

John Martinez, a New York City probationary police officer, refused to answer question posed by a superior concerning his conduct while off-duty and outside his jurisdiction despite being given ?use immunity? with respect his answers to the question.

Individuals granted ?use immunity? cannot have their answers to the questions used against them in a subsequent criminal proceeding. Gardner v Broderick, 392 US 273 and People v Corrigan, 80 NY2d 326 discuss the parameters of immunity in connection with compelling a public officer or employee to answer questions concerning his or her performance of official duties.

If, however, an individual fails to answer questions truthfully where he or she has use or transactional immunity, such immunity does not prevent the fact that he or she answered falsely from being used against the individual if he or she is subsequently charged with perjury [United States v Apfelbaum, 445 US 115].

Terminated from his position because of his refusal to answer questions during the investigatory hearing being conducted by his superiors, Martinez appealed. His appeal was dismissed by Appellate Division. The court said that probationary employees may be dismissed in good faith and for any lawful reason. Clearly bad faith was not present here, in view of the fact that Martinez refused to respond to questions after being given use immunity with respect to his answers.

The Appellate Division concluded that terminating Martinez was lawful in view of the Department?s ?accountability to the public for the integrity of the police department....? This accountability, said the court, justified its inquiry into any alleged inappropriate conduct of its police officers while off-duty and outside the jurisdiction, particularly where the alleged misconduct involves criminal acts.?

*For additional material on ?use immunity? and the individual?s right against self-incrimination, together with a report of the trial court?s ruling in the Spielbauer case, go to the NYPPL item at:
http://publicpersonnellaw.blogspot.com/2007/05/public-employees-and-fifth-amendment-in.html

The full text of the decision is posted on the Internet at:
http://www.courtinfo.ca.gov/opinions/documents/S150402.PDF

Full post as published by New York Public Personnel Law on February 18, 2009 (boomark / email).